Tripura High Court
Unknown vs The Union Of India on 9 March, 2021
Page 1 of 23
HIGH COURT OF TRIPURA
AGARTALA
WP(C) No.1162/2018
1. Sri Basudeb Debnath, S/O- Sri Motilal Debnath 140, Lake Chowmuhani
Bazar, P.O-Agartala, P.S-West Agartala, District-West Tripura, PIN-
799001.
2. Sri Bhulu Dey, S/O- Sri Sukumar Dey, Village and P.O- Barjala, P.S-
Capital Complex, Near- Radha Krishna Nat Mandir, District- West Tripura,
PIN-799002.
3. Sri Hiralal Das, S/O- Late Suklal Das, Resident of- Bhallukiya Tilla, P.O-
Kunjaban, P.S- East Agartala, District- West Tripura, PIN- 799006.
4. Sri Karnajit Chowdhury, S/O- Late Monoranjan Chowdhury, Resident of-
Barjala, P.O- Barjala, P.S-West Agartala, District-West Tripura, PIN-
799002.
5. Sri Pradip Ghosh, S/O- Sri Paritosh Ghosh, Resident of- 290, Bhati
Abhoynagar, Bitarban, Near Ramnagar Out Post, Village- Agartala, P.S-
West Agartala, District- West Tripura PIN-799002.
6. Sri Raju Das, S/O- Sri Narayan Das, Resident of- Chanmari, UPC Club,
Kunjaban, Capital Complex, P.O- Kunjaban, P.S- Capital Complex, District-
West Tripura, PIN-799006.
7. Sri Raju Das, S/O- Sri Gopal Chandra Das, Village- R.K. Nagar, P.S-
Bodhjung Nagar, P.O- Khas Noagoan (Banikya Chowmuhani), Near Samaj
Kalyan Sangha, District- West Tripura, PIN-799008.
8. Sri Ranabir Chowhan, S/O- Sri Badal Chowhan, Resident of- Kunjaban
Colony, Village and PO- Abhoynagar, P.S- East Agartala, District- West
Tripura PIN-799006.
9. Sri Samir Chandra Ghosh, S/O- Late Nepal Chandra Ghosh, Resident of-
East Chanmari, P.O- Bankumari, P.S- West Agartala, District- West Tripura,
PIN- 799006.
10. Sri Sanjoy Dey, S/O- Sri Dhirendra Kumar Dey, Resident of- Ranir
Bazar, Bridhya Nagar, Near Ration Shop, P.O and P.S- Ranir Bazar,
District- West Tripura, PIN- 799035.
Page 2 of 23
11. Sri Sukanta Dey, S/O- Sri Prafulla Dey, Resident of- Radhanagar, P.O-
Agartala, P.S- West Agartala, District- West Tripura, PIN-799001.
12. Smt. Suniti Dhanuk, W/O- Sri Daya Sankar Dhanuk, Resident of- 120,
AMC, Ward No-3, Harijan Colony, Sub-Division-Sadar, 79 Tilla, Agartala,
P.O- Kunjaban, P.S- Capital Complex, District- West Tripura, PIN- 799006.
----Petitioner(s)
Versus
1. The Union of India, Department of Personnel and Training, Represented
by Principal Secretary, North Block, New Delhi, PIN-110001.
2. The Comptroller & Auditor General of India, 9, Deen Dayal Upadhyaya
Marga, New Delhi-110124.
3. The Asst. Comptroller Auditor General (N), 9, Deen Dayal Upadhyaya
Marga, New Delhi-110124.
4. Accountant General (Audit), Tripura, Malancha Nibas, P.O- Kunjaban,
Agartala, West Tripura, PIN-799006.
5. Senior Deputy Accountant General (Audit), Office of the Accountant
General (Audit), P.O- Kunjaban, Agartala, West Tripura, PIN-799006.
-----Respondent(s)
Along with
WP(C) No.1161/2018
1. Sri Sudip Biswas, S/O- Sudhan Biswas, West Noabadi, P.O- Agartala,
P.S- Bodhjungnagar, District- West Tripura, PIN-799008.
2. Sri Siman Rakshit, S/O- Lt. Hira Lal Rakshit, resident of A.D. Nagar,
Road No-14, P.O. and P.S- A.D Nagar, District- West Tripura, PIN-799003.
3. Sri Haradhan Dey, S/O- Lt. Indramohan Dey, Resident of- Dhaleswar
Natun Palli, P.O- Dhaleswar, PS- East Agartala, District- West Tripura,
PIN-799007.
4. Smt. Sabitri Podder, D/O- Gopal Podder, Resident of- Indranagar,
Agartala, P.O- Indranagar, P.S- NCC, District- West Tripura, PIN-799006.
Page 3 of 23
5. Sri Samir Sutradhar, S/O- Nepal Sutradhar, Resident of- West
Bhubanban, Agartala, P.O- West Bhubanban, District- West Tripura, PIN-
799001.
6. Sri Sumit Dhanuk, S/O- Madhu Dhanuk, Resident of- G.B. 79 Tilla,
Harijan Colony, Agartala, PO- Kunjaban, P.S- Capital Complex, District-
West Tripura, PIN-799006.
7. Sri Sudhir Oriya, S/O- Bipul Oriya, resident of- Badharghat Sri Palli,
Agartala, P.S-Amtali, P.O- A.D. Nagar, District- West Tripura, PIN-
799003.
8. Sri Raja Biswas, S/O- Rakhal Ch. Biswas, Resident of- Old Kali Bari
Lane, Krishnanagar, P.O- Agartala, P.S-West Agartala, District- West
Tripura, PIN- 799001.
9. Sri Goutam Roy, S/O- Lt. Digendra Kr. Roy, Resident of- A.D Nagar,
Road No-6, P.O. and P.S- A.D Nagar, District- West Tripura, PIN- 799003.
10. Sri Shibu Das, S/O- Gouranga Das, Resident of- Madhya Bhubanban,
P.O- West Bhubanban, District- West Tripura, PIN- 799002.
11. Sri Bimal Sarkar, S/O- Lt. Laxman Sarkar, Resident of- Lankamura,
Ghosh Para, P.O- Lankamura, P.S- West Agartala, District- West Tripura,
PIN- 799009.
12. Sri Gopal Karmakar, S/O- Lt. Pramod Karmakar, Resident of G.B 79
Tilla, Agartala, P.O- Kunjaban, P.S- Capital Complex, District- West
Tripura, PIN-799006.
13. Sri Babul Karmakar, S/O-Lt. Santosh Ch. Karmakar, Noa Gaon,
Krishnanagar, Agartala, P.O- Noa Gaon, Krishnanagar, P.S- NCC, Dist-
West Tripura, PIN-799006.
14. Sri Biswajit Das, S/O-Dulal Das, resident of G.B 79 Tilla, P.O-
Kunjaban, P.S- NCC, Dist-West Tripura, PIN- 799006.
----Petitioner(s)
Versus
1. The Union of India, Department of Personnel and Training, Represented
by Principal Secretary, North Block, New Delhi, PIN-110001.
2. The Comptroller & Auditor General of India, 9, Deen Dayal Upadhyaya
Marga, New Delhi-110124.
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3. The Asst. Comptroller Auditor General (N), 9, Deen Dayal Upadhyaya
Marga, New Delhi-110124.
4. Accountant General (Audit), Tripura, Malancha Nibas, P.O- Kunjaban,
Agartala, West Tripura, PIN-799006.
5. Senior Deputy Accountant General (Audit), Office of the Accountant
General (Audit), P.O- Kunjaban, Agartala, West Tripura, PIN-799006.
-----Respondent(s)
For Petitioner(s) : Mr. P. Roy Barman, Sr. Advocate,
Mr. Samarjit Bhattacharjee, Advocate.
For Respondent(s) : Mr. Bidyut Majumder, Asstt. S.G.,
Mr. Biswanath Majumder, CGC.
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
Date of hearing and judgment : 9th March, 2021.
Whether fit for reporting : NO.
JUDGMENT & ORDER (ORAL)
(Akil Kureshi, C.J.)
These petitions arise in common background. They were heard
together and would be disposed of by this common judgment.
2. At the outset, we may record facts in brief. In WP(C) No.1162
of 2018 petitioners are serving as casual workers in the office of Accountant
General (Audit), Tripura on the post of Multi Tasking Staff (MTS) since
several years. They are paid fixed monthly wages. According to them, some
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of them have been continued uninterruptedly since more than 20 years by
now. Many of them have completed more than 10 years of such service. Few
of them have been engaged more recently. At Annexure-1 these petitioners
have produced a chart showing their year of initial engagement, total length
of service as on 17.01.2017 and the monthly wages for the work assigned to
them which is being paid to them. This chart reads as under:
Sl. Name Date of Length Monthly Duties Performed
No. Engagement of Wages
service paid (Rs.)
1. Raju Das(I) 1998 18 yrs 8000 General MTS duty
2. Suniti 1998 18 yrs 7000 Safaiwala
Dhanuk
3. Hiralal Das 1998 18 yrs 8000 General MTS duty
4. Bhulu Dey 2004 12 yrs 10,000 Attached with AG
5. Sukanta Dey 2006 10 yrs 8000 General MTS duty
6. Raju Das(II) 2006 10 yrs 8000 General MTS duty
7. Samir Ghosh 2006 10 yrs 8000 Driver
(Ambassador car)
8. Pradip Ghosh 2006 10 yrs 8000 Attached with
DAG/Admn
9. Sanjay Dey 2006 10 yrs 8000 General MTS duty
10. Basudeb 2008 8 yrs 8000 General MTS duty
Debnath
11. Ranabir 2011 5 yrs 5500 General MTS duty
Chouhan
12. Karnajit 2012 4 yrs 8000 Attached with
Chowdhury DAG/Audit
13. Babu Dhanuk 2013 3 yrs 5500 Safaiwala
3. The petitioners contend and with respect to which there is no
serious dispute that in the department there are 34 sanctioned posts of MTS.
Since long, many of these posts have remained vacant. On account of large
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number of vacancies in the cadre, the department had to engage casual
workers such as the petitioners to perform important tasks such as, cleaning,
driving the official car etc. In support of this averment the petitioners have
produced at Annexure-2 a letter dated 11.10.2010 written by the Sr. Deputy
Accountant General (Audit) to the Comptroller & Auditor General of India
pointing out that against the sanctioned strength of 34 persons in the cadre of
MTS only 19 posts were filled up. It was, therefore, difficult to manage the
duties of the MTS such as, maintaining cleanliness, upkeep of the sections,
sanitation work of the building and office premises, cleaning, dusting, watch
and ward, delivery etc. On account of this, he had to engage 9 persons on
casual basis. The petitioners have also produced at Annexure-3 another such
letter dated 12.10.2012 written by the Accountant General (Audit) to the
Principal Director (Staff), Office of the Comptroller & Auditor General of
India in which it is pointed out that the office has not made any recruitments
to the post of MTS and that the day to day work is being managed by
engaging casual workers. The petitioners have also produced a letter dated
20.03.2017 which is in the nature of reply to the queries raised on their
behalf under Right to Information Act received from Deputy Accountant
General/Admn. In this letter it was stated that presently against 34 casual
workers for the same nature of work.
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4. On 20.01.2017 the respondents had issued impugned
communication. It was a letter written by the Assistant Comptroller &
Auditor General to all Heads of Department located in North East which
provided that henceforth no funds will be allocated under the head „Wages‟
w.e.f. 01.04.2017 except in special cases and whenever need be, proposal for
outsourcing of staff in different categories for filling up the vacant posts will
be furnished. On the basis of these guidelines, all the petitioners would face
termination. These petitioners, therefore, filed WP(C) No.353 of 2017 and
connected petitions. On 05.06.2017 the Single Judge of this Court in the said
petition ordered the respondents to maintain status quo. All the petitions
came to be disposed of by a common judgment dated 25.09.2017. The Court
was of the opinion that the issues had to be decided by the Central
Administrative Tribunal and writ petition at the first instance could not have
been filed. While permitting the petitioners to approach the Central
Administrative Tribunal, the Court extended the interim order by 15 days.
These petitioners thereupon filed Original Application No.283 of 2017
before the Central Administrative Tribunal, Guwahati Bench. This Original
Application was disposed of by impugned judgment dated 05.09.2018
directing the department to dispose of the representation of the petitioners
within 4 months from the receipt of the copy of the order giving opportunity
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of hearing and passing a reasoned order. Thereupon the petitioners filed the
present petition and once again obtained interim order against their
termination.
5. Facts
in WP(C) No.1161 of 2018 are substantially similar. Here
the petitioners are engaged on casual basis in the Audit Wing of the
Accountant General‟s office, Tripura, Agartala against sanctioned posts of
MTS. In their cases, they have not given the details of their length of
engagement. However, we are informed that all of them have been engaged
since 2010 and onwards.
6. In background of such facts, learned counsel for the petitioners
raised following contentions:
(i) All the petitioners have been engaged against clear
vacancies. All the petitioners possess educational qualification of Higher
Secondary pass which is prescribed as per recruitment rules for the post in
question. They must, therefore, be granted regularization after years of
casual engagement in view of decision of Supreme Court explaining the
Constitution Bench judgment in case of Secretary, State of Karnataka and
others vrs. Umadevi (3) and others reported in (2006) 4 SCC 1;
(ii) The petitioners have been paid wages at fixed rates. After
several years, the petitioners have a right to claim salary in the minimum of
the scale provided for the regular incumbents;
(iii) In any case, the services of the petitioners cannot be
terminated for outsourcing of the work. Any such attempt on part of the
department would breach the principle of one casual engagement cannot be
replaced by another.
7. On the other hand, learned counsel for the A.G. department
opposed the petitions contending that in view of the decisions of Supreme
Court in case of Umadevi (supra) the petitioners cannot claim regularization
in service. All the petitioners were engaged without any selection or open
competition. The department for a greater efficiency wishes to outsource the
work. It is on account of interim orders passed by the Courts that their
engagement is still continued.
8. In case of Umadevi (supra), the Constitution Bench of the
Supreme Court considered the prevailing practice of engaging casual
workers in Government organisations and corporations, continuing for long
period of time and thereafter regularizing them. Such practice was strongly
deprecated holding that all public employments must be visited by the
principles of equality flowing from Articles 14 and 16 of the Constitution.
Any engagement which is without open competition will breach these
requirements. It was observed that:
"43. Thus, it is clear that adherence to the rule of equality in
public employment is a basic feature of our Constitution and
since the rule of law is the core of our Constitution, a court
would certainly be disabled from passing an order upholding a
violation of Article 14 or in ordering the overlooking of the
need to comply with the requirements of Article 14 read with
Article 16 of the Constitution. Therefore, consistent with the
scheme for public employment, this Court while laying down
the law, has necessarily to hold that unless the appointment is
in terms of the relevant rules and after a proper competition
among qualified persons, the same would not confer any right
on the appointee. .....................
xxx xxx xxx
48. ................. As has been held by this Court, they
cannot be said to be holders of a post, since, a regular
appointment could be made only by making appointments
consistent with the requirements of Articles 14 and 16 of the
Constitution. The right to be treated equally with the other
employees employed on daily wages, cannot be extended to a
claim for equal treatment with those who were regularly
employed. That would be treating unequals as equals. It
cannot also be relied on to claim a right to be absorbed in
service even though they have never been selected in terms of
the relevant recruitment rules. The arguments based on
Articles 14 and 16 of the Constitution are therefore
overruled."
9. Having said that, a small window for consideration of
regularization was kept open when in paragraph-53 (of SCC) the Supreme
Court made following observations:
"53. One aspect needs to be clarified. There may be cases
where irregular appointments (not illegal appointments) as
explained in S.V. Narayanappa [AIR 1967 SC 1071], R.N.
Nanjundappa [(1972) 1 SCC 409] and B.N. Nagarajan
[(1979) 4 SCC 507] and referred to in para 15 above, of duly
qualified persons in duly sanctioned vacant posts might have
been made and the employees have continued to work for ten
years or more but without the intervention of orders of the
courts or of tribunals. The question of regularisation of the
services of such employees may have to be considered on
merits in the light of the principles settled by this Court in the
cases above referred to and in the light of this judgment. In
that context, the Union of India, the State Governments and
their instrumentalities should take steps to regularise as a one-
time measure, the services of such irregularly appointed, who
have worked for ten years or more in duly sanctioned posts
but not under cover of orders of the courts or of tribunals and
should further ensure that regular recruitments are undertaken
to fill those vacant sanctioned posts that require to be filled
up, in cases where temporary employees or daily wagers are
being now employed. The process must be set in motion
within six months from this date. We also clarify that
regularisation, if any already made, but not sub judice, need
not be reopened based on this judgment, but there should be
no further bypassing of the constitutional requirement and
regularising or making permanent, those not duly appointed as
per the constitutional scheme."
10. Thus, as provided in the said portion of the judgment, in case
where the employment has continued for more than 10 years without
intervention of the orders of the Courts, the regularization of services of
such employees would have to be considered as long as the initial
engagement was irregular but not illegal and such engagement was against
sanctioned posts. This was also described as a one-time measure. In
Umadevi (supra), Supreme Court did not elaborate as to which kind of
engagements would be treated as irregular and which illegal. Going by the
tenor of the judgment, however, any engagement which was made without
open competition and thus without adhering to the principles of equality
flowing from Articles 14 and 16 of the Constitution would be illegal.
However, in case of State of Karnataka and others vrs. M.L. Kesari and
others reported in (2010) 9 SCC 247 the situation was viewed slightly
differently. Before we take note of the relevant observations of the Supreme
Court in the said case, we may trace the facts. It was a case in which the
original petitioners were engaged on daily basis by Zila Panchayats during
the period between 1985 to1987 in different capacities. They were continued
on daily wages for 15 years without intervention of the Court. In the year
2002 they had filed writ petitions before the Karnataka High Court. Division
Bench in the writ appeal decided on 28.07.2004 held that these petitioners
were entitled to regularization, subject to certain conditions. It was this
judgment which was challenged by the State of Karnataka before the
Supreme Court. The Supreme Court decided the appeal of the State of
Karnataka after the Constitution Bench judgment in case of Umadevi (supra)
was rendered. The ratio in Umadevi case (supra) was explained as under:
"7. It is evident from the above that there is an exception
to the general principles against "regularisation" enunciated in
Umadevi (3) [(2006) 4 SCC 1], if the following conditions are
fulfilled:
(i) The employee concerned should have worked
for 10 years or more in duly sanctioned post without the
benefit or protection of the interim order of any court or
tribunal. In other words, the State Government or its
instrumentality should have employed the employee and
continued him in service voluntarily and continuously for
more than ten years.
(ii) The appointment of such employee should not
be illegal, even if irregular. Where the appointments are not
made or continued against sanctioned posts or where the
persons appointed do not possess the prescribed minimum
qualifications, the appointments will be considered to be
illegal. But where the person employed possessed the
prescribed qualifications and was working against
sanctioned posts, but had been selected without
undergoing the process of open competitive selection, such
appointments are considered to be irregular." (emphasis
supplied)
11. Thereafter, after referring to the expression "one-time measure"
used by Supreme Court in case of Umadevi (supra), it was further observed
as under:
"11. The object behind the said direction in para 53 of
Umadevi (3) is twofold. First is to ensure that those who have
put in more than ten years of continuous service without the
protection of any interim orders of courts or tribunals, before
the date of decision in Umadevi (3) was rendered, are
considered for regularisation in view of their long service.
Second is to ensure that the departments/instrumentalities do
not perpetuate the practice of employing persons on daily-
wage/ad hoc/casual basis for long periods and then
periodically regularise them on the ground that they have
served for more than ten years, thereby defeating the
constitutional or statutory provisions relating to recruitment
and appointment. The true effect of the direction is that all
persons who have worked for more than ten years as on 10-4-
2006 [the date of decision in Umadevi (3)] without the
protection of any interim order of any court or tribunal, in
vacant posts, possessing the requisite qualification, are
entitled to be considered for regularisation. The fact that the
employer has not undertaken such exercise of regularisation
within six months of the decision in Umadevi (3) or that such
exercise was undertaken only in regard to a limited few, will
not disentitle such employees, the right to be considered for
regularisation in terms of the above directions in Umadevi (3)
as a one-time measure."
12. As noted, in case of Umadevi (supra) there is no elaboration of
which kind of appointments should be treated as illegal and which kind
irregular and therefore, the observation that even in an engagement which
was not made after competition with qualified candidates would be an
irregular appointment, must be seen as the observations of the Court in the
said case of Kesari (supra).
13. In case of Amarkant Rai vrs. State of Bihar and others
reported in (2015) 8 SCC 265 the Court referred to the decisions in case of
Umadevi (supra) and Kesari (supra) and gave following directions:
"13. In our view, the exception carved out in para 53 of
Umadevi (3) is applicable to the facts of the present case.
There is no material placed on record by the respondents that
the appellant has been lacking any qualification or bore any
blemish record during his employment for over two decades.
It is pertinent to note that services of similarly situated
persons on daily wages for regularisation viz. one Yatindra
Kumar Mishra who was appointed on daily wages on the post
of clerk was regularised w.e.f. 1987. The appellant although
initially working against unsanctioned post, the appellant was
working continuously since 3-1-2002 against sanctioned post.
Since there is no material placed on record regarding the
details whether any other night guard was appointed against
the sanctioned post, in the facts and circumstances of the case,
we are inclined to award monetary benefits to be paid from 1-
1-2010."
14. The decision last in the line which needs to be referred and
which in the context of our facts is significant, is one in case of Narendra
Kumar Tiwari and others vrs. State of Jharkhand and others reported in
(2018) 8 SCC 238. It was a case in which large number of daily rated or
contractual workers engaged by Government of Jharkhand had approached
the High Court for regularization of their services. The High Court did not
grant the relief in view of the regularization rules framed by the State of
Jharkhand upon which they had approached the Supreme Court. It was
argued that on the day when the decision in case of Umadevi (supra) was
rendered, none of these persons had completed 10 years of service and,
therefore, cannot be regularized. While allowing their appeal, it was
observed that the decision in case of Umadevi (supra) was intended to put a
full stop to pernicious practice of irregularly or illegally appointing daily-
wage workers and continuing with them indefinitely. It was for this reason
that the concepts of one-time measure and cut-off date were introduced in
the hope that the State would cease and desist from making irregular and
illegal appointments and instead make appointments on regular basis. The
Supreme Court thereafter, after referring to the decision in case of Kesari
(supra) further observed as under:
"7. The purpose and intent of the decision in Umadevi
(3) was therefore twofold, namely, to prevent irregular or
illegal appointments in the future and secondly, to confer a
benefit on those who had been irregularly appointed in the
past. The fact that the State of Jharkhand continued with
the irregular appointments for almost a decade after the
decision in Umadevi (3) is a clear indication that it believes
that it was all right to continue with irregular
appointments, and whenever required, terminate the
services of the irregularly appointed employees on the
ground that they were irregularly appointed. This is
nothing but a form of exploitation of the employees by not
giving them the benefits of regularisation and by placing
the sword of Damocles over their head. This is precisely
what Umadevi (3) and Kesari sought to avoid." (emphasis
supplied)
15. Culmination of the above decisions would be that the directions
in case of Umadevi (supra) cannot be seen as providing a rigid cut-off date
for applying the principle of 10 years of completion of engagement without
Court intervention. Any such argument would give a complete license to the
State and its authorities to continue to engage persons on casual basis and to
refuse to recognize any of their rights even after decades of such
engagement by citing the cut-off date referred to by the Supreme Court in
case of Umadevi (supra). This has been duly explained by Supreme Court in
case of Kesari (supra) and Narendra Kumar Tiwari (supra). In the present
case, we may recall, many of these petitioners were engaged against
sanctioned posts and clear vacancies long before the decision in case of
Umadevi (supra) was rendered. Even after the Constitution Bench rendered
its judgment in case of Umadevi (supra) in the year 2006, without any
intervention from Courts all these engagements continued till June, 2017.
Thus in some cases for over a decade after the decision in case of Umadevi
(supra) this casual engagements continued. Curiously if the argument of the
Government was that on account of the decision in case of Umadevi (supra)
such engagements cannot be regularized, it would be a contradiction in term
when the State made fresh engagements on casual basis long after the
judgment in case of Umadevi (supra) was rendered. Subject to fulfilling the
conditions provided in case of Umadevi (supra) as explained in later
decisions in case of Kesari (supra) and Narendra Kumar Tiwari (supra),
these petitioners would deserve consideration for regularization.
16. Even those who may not qualify for regularization, cannot be
disengaged after eliciting work from them for years together by citing a
change in policy that henceforth such work would be outsourced. It may be
open for the State to outsource some of its tasks but not by disengaging
persons engaged since long and that too when the vacancies against which
such engagements were made are still continued. As correctly pointed out by
the counsel for the petitioners, in case of Hargurpratap Singh vrs. State of
Punjab and others reported in (2007) 13 SCC 292 the Supreme Court had
observed as under:
"3. We have carefully looked into the judgment of the
High Court and other pleadings that have been put forth
before this Court. It is clear that though the appellants may not
be entitled to regular appointment as such it cannot be said
that they will not be entitled to the minimum of the pay scale
nor that they should not be continued till regular incumbents
are appointed. The course adopted by the High Court is to
displace one ad hoc arrangement by another ad hoc
arrangement which is not at all appropriate for these persons
who have gained experience which will be more beneficial
and useful to the colleges concerned rather than to appoint
persons afresh on ad hoc basis. Therefore, we set aside the
orders made by the High Court to the extent the same
deny the claim of the appellants of minimum pay scale and
continuation in service till regular incumbents are appointed.
We direct that they shall be continued in service till regular
appointments are made on minimum of the pay scale. The
appeals shall stand allowed in part accordingly."
17. It was also not be open for the State to continue to pay fixed
wages to these workers for decades together when (i) their engagement was
against sanctioned posts; (ii) they have been continued for long period of
time; (iii) they fulfill the educational qualifications prescribed for the post;
(iv) the work is perennial in nature; (v) they have been engaged virtually
continuously throughout since their initial engagements and (vi) they are
doing the same work which regular staff members are doing. They may not
be equated with regular Government servants for the purpose of pay and
allowances, nevertheless on the principle of "equal pay for equal work" as
elaborately explained in case of State of Punjab and others vrs. Jagjit
Singh and others reported in (2017) 1 SCC 148, they must get wages of
course on daily basis, on the minimum of the scales prescribed for the post
in question minus other allowances. Relevant portion of the judgment of
Supreme Court in case of Jagjit Singh (supra) may be noted:
"58. In our considered view, it is fallacious to determine
artificial parameters to deny fruits of labour. An employee
engaged for the same work cannot be paid less than another
who performs the same duties and responsibilities. Certainly
not, in a welfare State. Such an action besides being
demeaning, strikes at the very foundation of human dignity.
Anyone, who is compelled to work at a lesser wage does not
do so voluntarily. He does so to provide food and shelter to
his family, at the cost of his self-respect and dignity, at the
cost of his self-worth, and at the cost of his integrity. For he
knows that his dependants would suffer immensely, if he does
not accept the lesser wage. Any act of paying less wages as
compared to others similarly situate constitutes an act of
exploitative enslavement, emerging out of a domineering
position. Undoubtedly, the action is oppressive, suppressive
and coercive, as it compels involuntary subjugation."
18. We are of the view that the Tribunal ought not to have diverted
the petitioners before the departmental authorities. The department had made
its stand very clear namely that none of these petitioners have a claim to any
further right than what they are being granted. In other words, the
department not only opposed their regularization, also was firmly of the
opinion that their services should be terminated. Under the circumstances,
no purpose would be served in asking the department to pass a speaking
order on their representations.
19. Under the circumstances, petitions are disposed of with
following directions:
(a) The respondents shall form a committee to consider the
cases of all the petitioners for regularization. Those petitioners who fulfill
the following conditions shall be regularized:
(i) Those petitioners who held necessary educational
qualifications at the time of their initial engagement;
(ii) They had completed more than 10 years of engagement
before the High Court for the first time granted them protection against
termination;
Such regularization shall be from the date of this judgement;
(b) None of the petitioners shall be disengaged for
outsourcing the work. However, it would be open for the department to
make appointments on regular basis upon which the concerned petitioners, if
not qualified for regularization shall have to vacate the place. It may also be
open for the department to abolish the posts and in such eventuality
disengagement can take place by following the principle of last come first
go;
(c) Till any of these petitioners are regularized and till those
petitioners who do not qualify for regularization but continue to be engaged
in the same capacity, they shall be paid daily wages at the minimum scale of
pay prescribed for the post in question without attendant allowances;
(d) The revised wages shall be paid from the date of the
judgment;
(e) The exercise for regularization shall be completed within
six months from today.
20. Petitions disposed of accordingly.
Pending application(s), if any, also stands disposed of.
(S.G. CHATTOPADHYAY), J (AKIL KURESHI), CJ
Pulak
